RALEIGH -- The State Bureau of Investigation will examine thousands of oldcases analyzed in its forensic lab two decades ago to look for crucial evidence that may have been withheld from defendants.
The review follows the exoneration of Greg Taylor on Feb. 17. A three-judge panel convened by the N.C. Innocence Inquiry Commission found that the Wake County man had spent 17 years in prison for a killing he did not commit. Duane Deaver, a veteran SBI crime lab analyst, presented a report to prosecutors in 1991 that said a test of a substance found on Taylor's truck indicated that it was blood. At trial, a prosecutor repeatedly told jurors the substance was blood.
But Deaver actually had done a test that indicated the substance was not human blood, a result never shared with prosecutors or defense lawyers. Deaver testified recently that it was SBI policy to handle reports the way he did.
N.C. Attorney General Roy Cooper, who heads the SBI, said he has ordered a review to make sure prosecutors and defendants received critical information.
"If not, it gets fixed," Cooper said Friday. "If the crime lab was deficient, we need to know, and the public needs to know it will be remedied."
Defense attorneys andforensic scientists demanded an extensive review last week. Defense lawyers in particular fear that Deaver's approach to the Taylor case might have been common at the SBI crime lab.
"The SBI is not entitled to any trust right now," said Staples Hughes, the state's appellate defender, whose office represents indigent clients appealing their convictions. "There needs to be a mass recall in which they are forced to reveal all of the cases that could be affected."
The SBI review is being handled internally at the Attorney General's Office. Cooper said he might call for an independent review depending on his staff's findings. No personnel or leadership changes at the SBI have been made in the wake of Taylor's exoneration, Cooper said.
Rep. Deborah Ross, a Democrat from Raleigh and chairwoman of a House Judiciary committee, said legislators should consider calling for a review of the SBI lab by the state auditor or a legislative committee.
"We don't have investigative subpoena power, but there are things that we could and should do," Ross said.
Some prosecutors are beginning their own reviews of old cases to identify any that might have been handled as Taylor's was.
Jim Woodall, president of the N.C. Conference of District Attorneys and the district attorney for Orange and Chatham counties, has begun reviewing old cases that relied on blood evidence. He is calling on other prosecutors to do the same, though he cautioned against making sweeping changes on the basis of the results in one case.
"If we have some that look questionable, we would do further testing," Woodall said, noting that the review will be a big undertaking since there is no database of old cases that will direct prosecutors to those needing review.
No policy violated
SBI Director Robin Pendergraft defended Deaver's work in Taylor's case, saying he violated no SBI policies. She explained that SBI forensic analysts report positive test results indicating a substance is blood, even if more specific tests call that result into question.
In Deaver's case, his first and only positive result came through a phenolphthalein test, a preliminary test often performed at crime scenes to give investigators clues about where blood might be. Though the test is helpful in early stages, it sometimes yields positive results for other substances such as metals and plant or animal matter.
Deaver performed tests needed to confirm the presence of blood. Those yielded negative results, according to Deaver's lab notes. He did not mention running those tests or the results in his report to prosecutors.
Pendergraft called Deaver's additional tests "inconclusive" and couldn't explain why he wouldn't have extracted additional samples to clarify any questions raised by the result. Pendergraft said prosecutors should have asked for Deaver's notes if they were unclear about his analysis.
Some forensic scientists criticized Deaver's handling of crime scene evidence.
"It is absolutely irresponsible to stop at [the presumptive test] and say it's blood, particularly when you've got better, conclusive tests casting doubt on that," said Heather Coyle, a forensic scientist who teaches at the University of New Haven and a former serologist at the crime lab in Connecticut.
1993 case questioned
Pendergraft said she didn't know how many cases Deaver handled while working in the SBI laboratory in the late 1980s and early 1990s. Deaver says he has testified as an expert at more than 100 trials, though he was involved in far more cases that never went to trial.
Deaver joined the SBI in 1985, fresh out of N.C. State University, just as forensic blood testing became standard in criminal investigations in North Carolina.
Deaver was one of a few forensic analysts trained in serology, the study of blood and other bodily fluids. He trained other SBI agents as well as crime scene analysts at local departments such as Wake County's City-County Bureau of Identification. He went on to become a blood spatter analyst.
Efforts to reach Deaver, who now works as an SBI criminal profiler, were unsuccessful.
His wife, Karen Deaver, defended her husband when reached this week, saying, "It's the media calling his credibility into question, not the SBI."
This is not the first time Deaver's work has been questioned. Deaver told Johnston County jurors in a capital murder trial in 1993 that a substance found on defendant George Goode's boot was blood, even though he had performed only the preliminary test that helps identify substances that might be blood.
A federal judge chastised Deaver's trial testimony last year in a ruling that vacated Goode's death sentence. He called Deaver's testimony "misleading."
Notes subpoenaed
Longtime criminal defense lawyers think the problem is not limited to Deaver. They point to a culture that allowed agents to offer opinions not supported by science for the sake of securing a conviction.
"I think this is just showing the symptom of a major disease at the SBI," said Mike Klinkosum, one of Taylor's attorneys and an assistant public defender in Wake County.
Much of what the SBI did 20 years ago never saw the light of day. The only reason Deaver's bench notes surfaced last year in Taylor's case was because of the N.C. Innocence Inquiry Commission. The agency, formed in 2006 to review claims of innocence, has the power to subpoena records such as those at the SBI. The commission, unique to North Carolina, investigated Greg Taylor's case after he had exhausted all of his appeals.
Sharing lab notes with prosecutors became common practice in the late 1990s, though federal law had long required police and prosecutors to turn over evidence that could be favorable to a defendant.
Now, lab notes are shared with prosecutors and defense attorneys, though some defense attorneys say they have difficulty getting all the information they want to fully review the SBI's analysis of evidence.
Coyle, the Connecticut forensic scientist, has been hired by defense attorneys to review more than 30 cases analyzed in the SBI lab. She said she has noticed significant problems over the years, including analysts confusing DNA samples from the suspect and the victim. Coyle has filed complaints about half a dozen times with the national organization that accredits the lab.
"The national forensic community is disturbed. They seem to be bending the science often," Coyle said. "This is damning to the credibility of the lab and the field. They need to reclaim confidence."
A push for change
Many in the legal and science community have long wanted the forensic lab to be taken out from under the SBI and the state attorney general, a recommendation made by the National Academy of Sciences last year because of concerns that such labs work to support prosecutors' theories, not pursue truth. About half the states have independent crime labs.
Defense attorneys say SBI analysts, who are law enforcement officers, often show bias in their lab reports.
"They work to convict people, not find the truth," said David Rudolf, a defense lawyer with offices in Charlotte and Chapel Hill who has brought civil suits against the SBI for its handling of other criminal cases. "This is an operation where the culture is that the end seems to justify the means."
Requests to move the lab in North Carolina are being renewed in light of Taylor's exoneration.
"Science is supposed to be something that is not one side or the other," said Joseph B. Cheshire V, a Raleigh defense lawyer pushing for the change. "It's supposed to be impartial. When you throw in partiality, you no longer have pure science."
Representatives of the N.C. Advocates for Justice, an association of litigators, will meet with Cooper this week to talk about the lab's independence, said Dick Taylor, director of the group.
Pendergraft said the lab belongs at the SBI, not an independent state agency.
"I think that's the wrong move - for the public and for public safety," Pendergraft said, saying that lab analysts are able to collect and analyze data better because of their law enforcement training.
Woodall, too, cautioned against moving the lab, saying that since analysts are trained law enforcement officers, they understand better what evidence is important not only to help eliminate suspects but to send investigators on paths they might not have followed.
"The thing that people keep missing is that for every suspect they identify, they eliminate hundreds," Woodall said. "I don't think a knee-jerk reaction at this time is what the state needs to do."
The lab undergoes frequent audits by inspectors affiliated with The American Society of Crime Lab Directors, Pendergraft noted.
Cooper asked that the SBI lab not be judged for past problems.
"We've made extraordinary advances," Cooper said. "We're talking about dealing with a problem that occurred two decades ago."
